Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules

Abstract:     
The Supreme Court has adopted prophylactic rules to safeguard rights such as the freedom of speech under the First Amendment, the Fifth Amendment right to be free from compulsion to testify against oneself, and the right to be free from racial discrimination. In at least one instance, currently pending before the Supreme Court, the Congress has legislatively attempted to repeal a judicially fashioned prophylactic rule. This article explores the extent to which the Supreme Court may legitimately protect against the violation of constitutional rights by adopting measures designed to minimize the risk of such violations, even when those measures are not specifically authorized by the Constitution. It also addresses whether the adoption of such prophylactic rules threatens to subvert the Constitution by unduly enlarging the powers of the Court. Finally, it analyzes the extent to which Congress may legitimately alter prophylactic rules that the Court has adopted.

JEL Classification: K10, K14, K41, K42

Accepted Paper Series